Opinion
DBDCV186027756S
01-24-2019
Nara Cristina RODRIGUEZ FEITOSA, Administratrix of the Estate of Marcos Antonio DaSilva v. K.T.I. UTILITY CONSTRUCTION & MAINTENANCE, LLC
UNPUBLISHED OPINION
OPINION
Kowalski, J.
The issue before the court is whether count four of the plaintiff’s amended complaint, sounding in strict liability, is legally sufficient. In its motion to strike, the defendant, Eversource Energy Service Company (Eversource), asserts that the plaintiff has failed to sufficiently allege a cause of action for strict liability under the theory of ultrahazardous activity. The plaintiff argues for an extension of the law, and asserts that, in 2016, the definition of ultrahazardous activity should be expanded to encompass situations such as presented in this case. The court concludes that the law on this issue is well-settled. Strict liability for ultrahazardous activity does not extend to electric utility companies in connection with providing electric service. See Green v. Ensign-Bickford Co., 25 Conn.App. 479, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). Therefore, the motion to strike is granted.
I. BACKGROUND
The plaintiff, Nara Cristinia Rodriguez Feitosa, is the widow of Marcos Antonio DaSilva (the decedent). The plaintiff brings this present action for wrongful death in her fiduciary capacity as the Administratrix of the Estate of DaSilva against the defendants, K.T.I. Utilities Construction & Maintenance, LLC (KTI), and Eversource. The plaintiff has filed a four-count amended complaint against KTI and Eversource. Counts one and two of the amended complaint assert claims against KTI. Counts three and four assert claims against the defendant for negligence and strict liability for an ultrahazardous activity.
The motion to strike concerns only Eversource, and therefore, it will be referred to as the defendant from this point forward.
In her amended complaint, the plaintiff alleges the following pertinent facts. The defendant is a publicly traded energy company headquartered in Hartford, Connecticut, and Boston, Massachusetts. The defendant owns, controls, and maintains more than 4, 270 miles of electric transmissions lines and 72, 000 pole miles of distribution lines. The defendant contracted with KTI to install utility poles in Wilton, Connecticut, and the decedent was an employee of KTI at all relevant times. On June 9, 2016, the decedent and a co-worker, Mark Scott, were installing a utility pole on Rivergate Drive in Wilton, Connecticut. The work involved the use of a derrick boom truck. The operator uses the boom to hoist a telephone pole and lower it to a worker on the ground who fits the pole into place. At approximately 12:30 p.m., Scott was moving the boom into position to hoist a telephone pole when the tip of the claw came in contact with an energized 13, 800 volt power line. Scott heard a scream and observed that the decedent was on the ground. The decedent had sustained electrical burns to multiple parts of his body, was electrocuted, and was pronounced dead later that afternoon.
In count four of the complaint, the plaintiff also alleges that the defendant’s conduct was ultra-hazardous based on: (1) the existence of a high degree of risk of harm to persons within the danger zone such as Silva; (2) the likelihood that the harm from such conduct would be great; (3) the ability to eliminate the risk of harm by the exercise of reasonable care: and (d) the extent to which the activity is not a matter of common usage. As a direct result of the defendant’s alleged ultra-hazardous conduct, the plaintiff claims strict liability for damages, including Silva’s wrongful and untimely death, his loss of lifetime earnings/wages, pain and suffering. Pl. Am. Compl, ¶ 32-33.
III. DISCUSSION
A. Standard Governing Motion to Strike
The governing standards applicable to a motion to strike are well settled. "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint ... If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Co., 240 Conn. 576, 580, 693 A.2d 293 (1997). Thus, the court must assume the truth of both the specific factual allegations and any facts provable thereunder, and in doing so must read the allegations broadly, rather than narrowly. See Milton v. Robinson, 131 Conn.App. 760, 784, 27 A.3d 480 (2011), cert. denied, 304 Conn. 906, 39 A.3d 1118 (2012). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted.) Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). In ruling on a motion to strike, they may also rely on reasonable inferences that can be drawn from the pleaded facts. Lawrence v. O & G Industries, Inc., 319 Conn. 641, 649, 126 A.3d 569 (2015).
B. Strict Liability for Ultrahazardous Activity
At issue is whether the plaintiff has sufficiently alleged its claim for strict liability based on an ultrahazardous activity. In support, the defendant argues that Connecticut courts have consistently held that the generation, transmission, supply or distribution of electricity by utility companies is not an ultrahazardous activity subject to strict liability. In response, the plaintiff contends that the court should deny the defendant’s motion to strike because existing law should be extended such that the definition of ultrahazardous activity should encompass the situation presented in the case at bar.
The leading case on strict liability for an ultrahazardous activity is Green v. Ensign-Bickford Co., 25 Conn.App. 479, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). Under the doctrine of strict liability for an ultrahazardous activity, "a plaintiff is not required to show that his loss was caused by the defendant’s negligence. It is sufficient to show only that the defendant engaged in an ultrahazardous activity that caused the defendant’s loss." Id., 482. "The doctrine has traditionally been applied in cases involving blasting and explosives ... Connecticut’s sole extension beyond blasting cases is to damage from a concussion resulting from pile driving." (Citations omitted.) Id., 482-83. "Sections 519 and 520 of 3 Restatement (Second), Torts, address the doctrine of strict liability for ultrahazardous activities. Section 519 provides in pertinent part: (1) [o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person ... resulting from the activity, although he has exercised the utmost care to prevent the harm. Comment (d) of the Restatement points out that the liability of § 519 is not based on any intent of the defendant to do harm to the plaintiff; rather, it arises out of the abnormal danger of the activity itself, and the risk that it creates of harm to those in the vicinity." (Internal quotation marks omitted.) Id., 485.
"The factors for a court to consider in determining whether an activity is abnormally dangerous are listed in § 520 of the Restatement as: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes." (Internal quotation marks omitted.) Id., 486. "Comment (f) to § 520 provides: In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand it is not necessary that each of them be present, especially if others weigh heavily." (Emphasis omitted; internal quotation marks omitted.) Id.
Our Supreme Court has declined to extend strict liability to electric utility companies in connection with providing electric service. See Citerella v. United Illuminating Co., 158 Conn. 600, 266 A.2d 382 (1969); Senderoff v. Housatonic Public Service Co., 147 Conn. 18, 156 A.2d 517 (1959). The court finds that although the plaintiff has made a good faith argument for extension of existing law, such an extension is not appropriate under the facts of this case. See A & F Construction Co., Inc. v. Zoning Board of Appeals, 60 Conn.App. 273, 277, 759 A.2d 101 (2000) ("It is not the function of this court to adopt an extension of the law that is contrary to long-standing Supreme Court precedent").
Moreover, Connecticut superior courts have consistently rejected claims to impose strict liability on electrical utility companies under the theory of an ultrahazardous activity. See McGinnis v. Gallagher Electric, Superior Court, judicial district of Litchfield, Complex Litigation Docket, Docket No. X06-CV-01-171020-S (December 2, 2002, Mc Weeny, J.); Curtiss v. Northeast Utilities., Superior Court, judicial district of Hartford, Docket No. CV-92-0511572-S (December 5, 1994, Norko, J.) (13 Conn.L.Rptr. 137); Rivera v. Connecticut Light & Power Co., Superior Court, judicial district of New Haven, Docket No. 314570 (July 1, 1993, Stanley, J) (9 Conn.L.Rptr. 415); M Monterio & Sons, Inc. v. Connecticut Light & Power Co., Superior Court, judicial district of Danbury, Docket No. 030234 (May 9, 1991, Moraghan, J.); Klotz v. Connecticut Light & Power Co., Superior Court, judicial district of Fairfield, Docket No. 041767 (November 9, 1979, Melville, J.); Plourde v. Hartford Electric Light Co., 31 Conn.Supp. 192, 326 A.2d 848 (1974).
The court notes, however, that there are cases involving electricity that do implicate the doctrine of strict liability. See Traveler’s Indemnity Co. v. Connecticut Light & Power Company, judicial district of Hartford, Docket No. CV-07-5012441-S (June 4, 2008, Hale, J.T.R.) (discussing the split of authority among superior courts as to whether electricity, after it has passed through the meter of a consumer, may be considered a "product" for purposes of Connecticut’s product liability act, General Statutes § 52-572m et seq.).
Thus, the court determines as a matter of law that providing electric service is not an ultrahazardous activity subject to strict liability.
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion to strike (# 114.00) is granted.